RE HOANG THI THANH THU

CAMP 457/2021

[2022] HKCA 697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 457 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1091 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 27 April 2021[1] refusing to grant leave out of time to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 15 February 2017. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 10 December 2015 and 27 October 2016 rejecting the applicant’s non-refoulement claim.

2.  On 17 August 2021, the Judge refused to extend the time for the applicant to appeal against his decision of 27 April 2021.[2]

Background

3.  The applicant is a Vietnamese national aged 50. She claims to have entered Hong Kong illegally in May 2014. She was arrested by the police in Hong Kong on 13 August 2014 for using a forged Hong Kong identity card, for remaining without permission and for taking up unauthorized employment. She was convicted and sentenced to 15 months’ imprisonment. On 1 March 2015, 6.5 months after her arrest, she lodged her non-refoulement claim.

4.  The applicant’s claim was based on the fear that, if she returned to Vietnam, she would be harmed or even killed by two creditors because she was unable to repay the loans she borrowed in late September 2010 for her furniture business which eventually failed. The factual background was summarized at [2] to [4] of the Board decision.

5.  By notices of decision dated 10 December 2015 and 27 October 2016, the Director assessed the applicant’s claim on all applicable grounds and determined it against her. The former covered BOR 3 risk,[3] persecution risk[4] and torture risk,[5] and the latter covered BOR 2 risk.[6]

6.  The applicant appealed to the Board against the Director’s decisions. An oral hearing was fixed for 23 January 2017, but the applicant failed to turn up. Having examined a subsequent letter from the applicant, the Board did not accept there was any reasonable excuse for her absence at the hearing, and decided not to reschedule another hearing. Instead, the Board put questions in writing to the applicant, which she answered in writing. The Board considered that even on the basis that the applicant did owe money to the two creditors, she had not suffered any serious injury or harm, or severe pain or suffering, and thus found that there was no real risk of harm in the event of refoulement. The Board also did not accept the two creditors were interested in locating the applicant all over Vietnam, and found that internal relocation was viable and that state protection was reasonably available. The Board went further and found that it had significant concerns regarding the applicant’s credibility and reliability, and eventually concluded that she had not been honest with regard to her claim and was not a genuine claimant for protection. As a result, the Board dismissed the applicant’s appeal on 15 February 2017 in respect of all applicable grounds.

The Judge’s decisions in the court below

7.  On 13 June 2018, long after the expiry of the 3-month time limit for judicial review stipulated in Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, the applicant briefly related the factual basis for her claim, and explained that she was late in applying for judicial review because she did not know how to proceed and only met someone who told her what to do in May 2018. She also explained that she does not read English or Chinese. However, she did not raise any specific grounds for judicial review in either the Form 86 or her affirmation.

8.  Following consideration of the documents only, on 27 April 2021 the Judge refused to grant leave for the applicant to apply for judicial review out of time. His reasons were set out at [12] – [17] of the Form CALL-1 as follows:

“ 12. As the last day of the three-month period for her to file her Form 86 fell on 15 May 2017, the Applicant was therefore more than 1 year late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13. In the Applicant’s case, a delay of more than 1 year must be considered as very substantial and excessive, for which she did not provide any explanation in her application or her supporting affirmation, and as the record shows that the decision was sent on the same day to her last reported address which is the same as stated in her present application, and which has never been returned through undelivered post, I do not see in the circumstances any good reason for her serious delay.

14. As for the merits, if any, of her intended application, as already noted above the Applicant has failed to put forward any proper or reasonably arguable ground for her intended challenge either, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Vietnam, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

9.  The applicant did not appeal within the 14-day time limit specified in Order 53 rule 3(4) of the Rules of the High Court but, on 25 May 2021, she took out a summons to seek an extension of time to appeal against the Judge’s decision. In the summons, the applicant briefly related the factual basis for her claim, but did not provide any explanation for her delay in appealing or specify any proposed grounds of appeal.

10.  At a hearing of her application on 3 August 2021, the applicant explained to the Judge that she was late with her appeal due to her language barrier and being unable to find someone to assist her at the time. Subsequently, on 17 August 2021, the Judge issued his decision in writing refusing to extend time, as he did not see any prospect of success in the intended appeal, and dismissing the summons.

The renewed application before this Court

11.  On 15 October 2021, the applicant filed a summons in this Court to seek an extension of time to appeal against the Judge’s refusal of leave for judicial review. In her supporting affirmation and “statement” both of the same date, the applicant explained that her appeal was late because she did not understand English and did not know if there was a deadline for filing an appeal at that time; it was only when a friend who knew how to appeal had free time to help her, that she was able to complete her application. She also briefly reiterated the factual basis of her claim, and stated that the Director did not consider her human rights and the Judge’s decision had been reached unfairly without allowing her to clarify her case and the situation in the country. She asserted that she would be killed by her creditors if she was sent back to Vietnam.

12.  The applicant lodged written submissions on 25 October 2021, in which she briefly referred to the factual background as well as the procedural history of her claim. In the remainder of her submissions, she set out certain general legal principles and quoted passages from case authorities, and asserted that the Board acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility, but did not provide any details or particulars in support of her arguments, or point to any specific errors made by the Judge.

13.  Having considered the available materials, we consider it appropriate to determine the present application on the papers without an oral hearing.

Discussion

14.  As mentioned above, pursuant to Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the intended appeal’s prospect of success; and (4) the prejudice to the respondent if an extension of time were granted.

15.  The applicant’s intended appeal was late by 2 weeks. As the delay was not very lengthy, we have proceeded to decide the present application on the basis of the merits of the intended appeal.

16.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

17.  As mentioned above, in her submissions the applicant did not provide any particulars in support of her assertions or as to any specific errors in the Judge’s decision. General assertions without particulars are not effective grounds to support an application for judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

18.  In the present case, the Board rejected the applicant’s non-refoulement claim due to its finding that she had not suffered any serious injury or harm or any severe pain or suffering. The Board also found that internal relocation was viable and that state protection was reasonably available. Further, the Board found that the applicant was neither honest nor reliable in relation to her claim for protection. As such, the Board found that there was no real risk of harm in the event of refoulement. These findings are within the province of the Board, who reached its conclusions for rational reasons expressed in its decision. The court cannot interfere with these assessments unless they are vitiated on public law grounds. There do not seem to us to be any such grounds in this case.

19.  Further, the applicant has failed to advance any grounds that point to any error in the Judge’s decision. We consider that the Judge was correct in taking the view that there was no reasonably arguable ground for judicial review, and was therefore right to refuse leave.

20.  For these reasons, we do not see any prospect of success in the intended appeal. It would be futile to extend the time for a hopeless appeal. The applicant’s summons of 15 October 2021 is dismissed accordingly.